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Estate Planning for Users of Assisted Reproductive Technology

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Technological advances in assisted reproduction over the past decades have resulted in the modern family confronting important and potentially gut-wrenching planning issues pertaining to the creation of children and the preservation of genetic materials relating to the creation of children.

Generally, assisted reproduction refers to conception by any means other than sexual intercourse. These modes of conception are often referred to collectively as “assisted reproductive technologies” (ART). The two most critical aspects of integrating ART into estate planning involve (1) defining parentage and descendants for legal purposes; and (2) determining who can control the disposition of frozen genetic material.

(Related: Estate Planning for the Modern Family: It’s Complicated, and Advisors Fall Short)

The widespread use of ART has resulted in “parentage” being divided into three distinct types: (1) biological or genetic parentage—contributing the genetic materials to the child (i.e., sperm or egg); (2) gestational parentage — carrying and bearing the child; and (3) functional parentage — raising the child following birth. Careful attention must be paid to how parentage is defined and how those definitions impact the children conceived through assisted reproduction.

For example, questions arising in an estate planning context could include:

  • Would a genetic child of a married couple be included for inheritance purposes if the child was born to a gestational carrier? What if the couple was not married?

  • Would a genetic child of one member of a same-sex couple be considered the child of the other member of the couple?

  • What is the inheritance status for a child born because a single man chooses to use a surrogate to carry a child with the intention to raise the resulting child as a single father?

  • For purposes of a particular estate planning instrument, should a child be allowed more than two parents?

To understand the various legal issues presented by ART, it is important to understand some of the basic science and background on the most common ART procedures.

The Birds and the Bees. As most of us were taught in a biology class at some point in school, creating a human child requires two single-cell gametes: an egg cell and a sperm cell. Once those two cells fuse at conception, they become a zygote (i.e., a fertilized egg). Once the zygote cell divides, the resulting collection of cells becomes an embryo. If the embryo is implanted in a female’s uterus (which naturally occurs about three days after zygote formation), then after approximately eight weeks of gestation, the embryo becomes known as a fetus. Approximately nine months (or thirty-eight weeks after conception) assuming a full gestational period, a baby is born.

Frozen Genetic Material. The first successful use of frozen sperm to achieve pregnancy was reported in 1953. And by the 1980’s, the availability of frozen sperm and the concept of single mothers by choice was introduced and has continued to gain popularity.

Artificial or Assisted Insemination. Artificial insemination involves sperm being transferred to a woman’s uterus or cervix. Artificial insemination was the first ART to become widely used, and due to the low cost and simplicity of the procedure, it remains popular. Artificial insemination often involves the use of a couple’s own genetic material, but it can also utilize sperm from a donor. For public policy reasons, states are increasingly making artificial insemination performed by someone other than a licensed physician a crime. In Georgia, for example, it is a felony.

In-Vitro Fertilization (IVF). IVF refers to any procedure that involves conception outside of the human body, followed by implantation of one or more embryos into the carrier’s uterus. IVF may utilize the genetic material of both of the intended parents, or that of one or two third-party donors. IVF can occur using the implantation of fresh embryos, or of embryos that have been frozen. The first birth of a child derived from a frozen embryo was reported in 1984. Based on preliminary data, over 208,000 IVF or similar procedures were administered in the United States in 2014, resulting in over 57,000 deliveries and over 70,000 live born infants. These births account for approximately 1.6% of all infants born in the United States in 2014. Major technology companies have made headlines recently by paying for their female employees to freeze their eggs for later use in IVF procedures.

DNA test results (Photo: Thinkstock)

(Photo: Thinkstock)

Surrogacy. Surrogacy refers to an arrangement in which a woman other than the “intended mother” carries the child to term and gives birth to the child. In a gestational surrogacy arrangement, the surrogate typically undergoes artificial insemination and carries the resulting embryo to term. This arrangement utilizes the surrogate’s own egg, typically with the intended father’s sperm, so that the surrogate is the biological mother of the resulting child. In contrast, the surrogate in a gestational carrier arrangement has no genetic relationship with the child. Instead, the surrogate carries to term with an in vitro-fertilized embryo, which was produced with the genetic material from one or both of the intended parents.

Determining Parentage of ART Children

Statutes granting parental rights over children born from artificial insemination or IVF generally create legal parent-child relationships between the child and the person or persons requesting and consenting in writing to the use of the technique. If a woman conceives through artificial insemination or other ART techniques using sperm donated by a man who is not her husband, the woman’s spouse is treated as the natural parent of the child if: (a) the insemination or other ART technique was done with the supervision of a licensed physician; and (b) the conception was done with the consent of her spouse.

In surrogacy situations, the child’s intended parents generally will become the child’s legal parents by adoption or through a petition to be named on the child’s birth certificate. The procedure for the intended parents to formalize their legal relationship with the child carried by the surrogate varies significantly from state to state. In connection with the adoption or petition, the parental rights of others are terminated.

It is relevant to note that same-sex couples will often engage in ART if they wish to produce a biological child. For gay male couples, surrogacy is required to produce a biological child. Sometimes a sister or other relative will donate the eggs that are used in order for the child to share DNA in common with both intended parents. For lesbian couples, the choice is often artificial insemination using donor sperm. The sperm could include sperm donated by a brother or other family member who shares DNA with the intended parent who is not the gestational parent. Often IVF is used to create an embryo using the egg of the non-gestational mother that is then implanted in the uterus of the other mother, who will carry the child to term.

Due to the increased use of assisted reproduction and the evolution of family relationships, it is now possible for more than two individuals to have a parenting role. Historically, a child can have only two legal parents. A few states and the District of Columbia currently recognize more than two people can have the legal responsibility of parenting a child. These situations sometimes arise in the context of same-sex couples, where the opposite sex donor maintains a relationship with the children of the same-sex couple.

Clients often focus on their own circumstances rather than considering that the provisions they choose will impact subsequent generations. Especially given the current popularity of perpetual trusts, drafters today must adapt documents for clients’ unique circumstances and anticipate a wide variety of contingencies. The documents are often being drafted not only for the family relationships currently known and contemplated by the settlor, but also for many future generations of the settlor’s family. Therefore, it is essential to anticipate further shifts, plan ahead, and provide flexibility in order to ensure that the donor’s wishes are effectively carried out.

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